Poland’s legal standoff with the EU has reached breaking point after its highest court ruled that some EU laws and articles of the European Treaties are incompatible with the Polish constitution.
In a ruling on Thursday the constitutional court in Warsaw said Poland's EU accession in 2004 had not ended national sovereignty over its affairs, and that the Court of Justice of the European Union (CJEU) was not the country's supreme legal authority.
"The primacy of constitutional law over other sources of law results directly from the constitution of the Republic of Poland, " said Piotr Muller, government spokesman, commenting on the ruling. "Today [once more] this has been clearly confirmed by the constitutional tribunal."
Thursday’s ruling – backed by 12 members of a constitutional court, with two dissensions – challenges articles one and 19 of the European treaties, referring to the EU’s legal basis and the European Court of Justice (CJEU).
Since taking power in 2015, Poland’s ruling Law and Justice (PiS) party has carried out widespread reform of public media, the public prosecutor service and the judiciary.
It says reform was necessary to remove encrusted crony structures, but critics see a concerted effort to bring all aspects of public life under PiS control.
A series of legal actions by Polish judges and the European Commission has met with a frosty response in Warsaw. In recent months government ministers have challenged the primacy of EU law, a key pillar of the union.
Last July the constitutional court – headed by judges critics say are illegally-appointed government cornies – opened a hearing into the relationship of EU and national law.
Court president Julia Anna Przylebska, a friend of PiS chairman Jaroslaw Kaczynski, postponed a final ruling until after this week's CJEU verdict.
Anticipating a drastic reaction from Warsaw, the Luxembourg-based CJEU warned Poland on Wednesday that its reforms had given “rise to reasonable doubt in the minds of individuals as to the independence and impartiality” of judges and courts.
Poland disputes the right of EU courts to intervene in its domestic affairs, in particular its judiciary, and has ignored a number of recent rulings. The CJEU insisted on Wednesday its interventions were permissible, in defence of EU law and its guarantee of independent and impartial courts in member states.
“A member state’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law,” the Luxembourg court added.
Ahead of Thursday’s ruling, Poland’s human rights commissioner warned against conflict with the EU, saying it plunges Poland into crisis and lower legal protection standards.
On Tuesday prime minister Mateusz Morawiecki, who requested the constitutional court hearing, dismissed talk of Poland's EU departure – or "Polexit"– as "fake news".
In Brussels, EU officials said that shattering the "taboo" over EU law primacy raised questions about Poland's future EU membership and its share of pandemic emergency funds.
“We cannot transfer billions to a member state without being able to legally ensure that the money reaches those for whom it is intended,” said Daniel Freund, a German MEP who sits on the EU parliament’s budget committee.
Prof Gavin Barret, of UCD’s Sutherland School of Law, said the ruling had “huge implications” for Poland’s share of the EU’s post-pandemic recovery fund and shifted Warsaw into an “untenable” position with Brussels for questioning the doctrine of supremacy of EU law.
“Without this doctrine, the EU legal order would fall apart,” he said. “I have no doubt that Poland will be prosecuted by the Commission and in due course fined for this until the incompatibility with EU law is removed.”